US.Department of Justice und Compliance

Das US.Department of Justice ist an der Weiterentwicklung von Compliance Standards eingebunden und hat, gerade angesichts von Health Care Fraud, Financial Fraud und dem Versagen von Compliance Systemen in der Finanz- und Wirtschaftskrise, diverse neue Aktivitäten entwickelt. Den aktuellen Status Quo können Sie nachfolgend auszugsweise der Rede von Acting Deputy Attorney General Gary G. Grindler Speaks auf der 2010 Compliance Week Conference, May 25, 2010 entnehmen. Interessant insbesondere vier neue Kriterien (fett markiert), bei deren Beachtung straffällig gewordenen Unternehmen mit einer Strafmilderung rechnen können. Derartige Überlegungen könnten durchaus auch Eingang finden in bei deutschen Firmen aufgestellten Compliance Systemen.Wer an der kompletten Rede interessiert ist, der folgt diesem Link.

……Understandably, the American public has expressed frustration that corporate America is not playing by the same rules.  That sentiment has only been exacerbated by events like the oil spill in the Gulf, the mine disaster in West Virginia, and the latest round of bonuses on Wall Street.  In this climate, your role in making sure your clients act as responsible corporate citizens is essential. ……

First, you can make sure that your clients have robust, effective compliance programs and internal controls.  A company’s compliance program continues to be one of the most important factors that we consider under the Principles of Federal Prosecution of Business Organizations.  You are on the front lines of this issue and can make a real difference in your respective institutions by sending the message about the need for an effective compliance program.  Compliance programs must not exist only on paper.

In this context, I want to point out that the United States Sentencing Commission recently amended the Sentencing Guidelines on the issue of compliance programs.  Specifically, the Commission clarified the importance of assessing and modifying compliance programs after you discover criminal conduct at your company.   The current Guidelines provide that, following the discovery of criminal conduct, a company should, among other things, make “any necessary modifications to the organization’s compliance and ethics program.”  The new amendment — assuming it goes into effect in November — provides a new commentary to that provision specifying that this post-violation process includes “assessing the compliance and ethics program and making modifications necessary to ensure the program is effective … and may include the use of an outside professional advisor to ensure adequate assessment and implementation of any modifications.”

In addition, the latest Guideline amendments clarify the circumstances under which an effective compliance and ethics program can entitle an organization to a 3-level reduction in its culpability score.

Specifically, the amendment allows an organization to receive the decrease if the organization meets four criteria: (1) the individual or individuals with operational responsibility for the compliance and ethics program have direct reporting obligations to the organization’s governing authority or appropriate subgroup thereof; (2) the compliance and ethics program detected the offense before discovery outside the organization or before such discovery was reasonably likely; (3) the organization promptly reported the offense to the appropriate governmental authorities; and (4) no individual with operational responsibility for the compliance and ethics program participated in, condoned, or was willfully ignorant of the offense.

These amendments reinforce the point that having a robust compliance program is critical not only to preventing misconduct in the first place, but also how your organization will be treated in the event criminal conduct does take place.

The second thing you can do to best position your client, is  you can partner with us.  As I hope has been clear in my discussion of our enforcement efforts, there is a consistent theme of the importance of sharing information and partnering with the private sector in its anti-fraud efforts.  Through examples like the National Heath Care Fraud Summit and the regional mortgage fraud summits, we have been reaching out to private sector anti-fraud professionals to share information about fraud schemes and improvements in data analysis.  While we have limitations in what we can share, we are interested in exploring ways to work together within those constraints.  If the private sector sees new fraud schemes or ways in which we can prevent fraud, that is something you should share with us.

Third, you can advise your clients to make early, voluntary disclosure of misconduct.   As you know, it is usually in your client’s best interest to cooperate with the government’s investigation through the disclosure of relevant facts, the production of documents and other evidence, and making witnesses available who have relevant information.  Not only is such voluntary disclosure in your client’s interest, but the failure to do so — the failure to make timely voluntary disclosure following the discovery of a criminal violation — in some circumstances can itself be an independent violation of law.   In December 2008, for example, the FAR was revised to require government contractors to disclose violations of criminal law and the False Claims Act in connection with award and performance of government contracts and subcontracts.  Under this provision, contractors are subject to debarment and suspension from government contracting for knowingly failing to disclose such violations and overpayments on government contracts in a timely manner.  Contractors are also required to establish internal control systems to facilitate timely disclosure of improper conduct and fully cooperate with government agencies responsible for audit, investigation, and corrective actions.

Fourth, you can guide your client’s decision to take meaningful remedial measures in response to criminal wrongdoing, including the payment of restitution and the disciplining or termination of culpable employees, officers, or directors.

In the end, all of these steps – robust compliance programs, information sharing between public and private sector anti-fraud efforts, voluntary disclosure, and meaningful remedial measures — will inure to the benefit of your clients in several significant ways.  They will deter criminal conduct from occurring in the first place.  They will ensure that if and when misconduct does occur, it is detected early on and can be rooted out before too much damage is done.  Your client will receive credit for such actions during the prosecutorial decision-making process.  Finally, such steps will make your clients stronger corporate citizens, and will empower your clients’ officers, directors, and employees to fulfill their fiduciary obligations to shareholders and their duties of honest dealing to the investing public and the taxpayers….

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